New Roman law doctrine for tobacco industry in India

Context:

• The government has asked the Supreme Court to classify tobacco as “res extra commercium”, which means “outside commerce” in Latin.
• As a result, the Indian tobacco industry could lose its legal right to trade.

What is in news?

• The government is not discussing banning tobacco.
• The goal of invoking the Roman law doctrine was only to curtail the industry’s legal rights.
• It would give the authorities more room to impose restrictions and discourage the industry from challenging tough new regulations.
• The government argued that it should have the power to regulate business and to mitigate evils to safeguard public health.
• Moreover, such a classification will help protect tobacco control measures from being challenged.

Background:

• 1970: The Supreme Court’s application of the doctrine to alcohol in the 1970s paved the way for at least two Indian states to ban it completely.
• 1975: The Government enacted the Cigarettes Act (Regulation of Production, Supply and Distribution) in 1975.
• The statutory warning “cigarette smoking is injurious to health” was mandatorily displayed on all cigarette packages, cartons and advertisements of cigarettes.
• 1990: Tobacco smoking was prohibited in all health care establishments, educational institutions, and domestic flights, air-conditioned coaches in trains, suburban trains and air-conditioned buses, through a Memorandum issued by the Cabinet Secretariat in 1990.
• 1995: Under the Chairmanship of Shri Amal Datta, the 22ndCommittee on Subordinate Legislation in November 1995 recommended to the Ministry of Health to enact legislation to protect non-smokers from second hand smoke.
• In addition, the committee recommended stronger warnings for tobacco users, stricter regulation of the electronic media and creating mass awareness programmes to warn people about the harms of tobacco.
• 2000: The Cable Television Networks (Amendment) Act 2000 prohibited tobacco advertising in state controlled electronic media and publications including cable television.
• 2003: The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 or COTPA, 2003is an Act of Parliament of India enacted in 2003.
• It prohibits advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of cigarettes and other tobacco products in India.
• 2004: In 2004, the Government ratified the WHO Framework Convention on Tobacco Control (WHO FCTC), which enlists key strategies for reduction in demand and reduction in supply of tobacco.
• 2008: There were many legal challenges which the Government had to face in view of the tobacco industry countering most of these Rules in the court of law.
• Thus, after a long legal battle and interventions by the civil society, Revised Smoke-free Rules came into effect from 2ndOctober, 2008.
• 2009: Subsequently the law pertaining to pictorial warnings on tobacco products packages was implemented with effect from 31stMay 2009.
• 2012: With effect from 2 October 2012, the government began screening two anti-tobacco advertisements, in movie theatres and on television.
• It is also mandatory for theatres to display a disclaimer on-screen whenever smoking scenes are depicted in the movie.
• January 8^th, 2018: Underlining that “health of a citizen has primacy”, the Supreme Court, stayed an order which had quashed the rule for 85% pictorial health warning on cigarette packets and other tobacco products.

What will be the adverse effects of “res extra commercium”?

• Industry’s legal rights would be severely limited if the court applies the doctrine to tobacco. For example:
• India’s tobacco labelling rules, which mandate 85 percent of a cigarette pack’s surface be covered in health warnings, have been a sticking point between the government and the tobacco industry since they were enforced in 2016.
• That year, the industry briefly shut factories across the country in protest and filed dozens of legal cases challenging the rules.
• Taking away the industry’s right to trade would imperil millions of Indian farmers who depend on tobacco for their living.
• The industry estimates 45.7 million people in India depend on tobacco for their living.

What are drawbacks in curbing the usage of tobacco in India?

Enforcement squad:

• Implementation of the laws against tobacco remains a challenge due to lack of trained enforcement squad.

Involvement of police:

• Involvement of police force still not uniformly possible as Cigarettes and Other Tobacco Products Act (COTPA) violations remains low priority.

Local municipal bodies:

• Local municipal bodies are not motivated equally across the States to take up relevant actions.

Tobbacco sales:

• Tobbacco sales violations continue in major parts of India due to low implementation drive and the tobacco industry interference.

Civic agencies and transport corporations:

• Civic agencies and transport corporations are not uniformly implementing COTPA.

What are the other measures to be taken?

• One of the areas needing attention is tobacco taxation.
•  Globally raising the tobacco taxes on tobacco products will be effective in reducing the prevalence of tobacco use.
• Smoking should be strictly prohibited in all closed workplaces either privately or publicly owned.
• Effective tobacco control is dependent on balanced implementation of demand and supply reduction strategies by the Government and inter-sectoral coordination involving stakeholder departments and ministries.
• It is necessary to craft health laws in every state to meet the peculiar challenges that every state faces in the context of smoking.
• A complete ban on smoking in public places by law.
• If not, then designated smoking areas should be separated from non-smoking areas through specified engineering guidelines.
• Mobilizing the common mass through mass education and community empowerment makes huge differences.
• The state governments should progressively reduce the area of land under tobacco cultivation in India.

Conclusion:

• It is said that no country has applied the “res extra commercium” doctrine to tobacco, but hoped India would set a precedent.